Prop. 8 upheld, but existing same-sex unions to stand

Few expect decision to end debate on volatile issue

By Josh Richman, Oakland Tribune

Posted:
05/26/2009 10:30:35 AM PDT

Updated:
05/26/2009 10:42:03 PM PDT

Click photo to enlarge

Same-sex marriage demonstrators wait in front of San Francisco City Hall for the California State Supreme Court to rule on the legality of a voter-approved ban on same-sex unions, Tuesday, May 26, 2009 in San Francisco. (AP Photo/Paul Sakuma)

SAN FRANCISCO — Proposition 8, the same-sex marriage ban that California voters approved last year, will stand as a constitutionally acceptable exercise of voters' free will, the state Supreme Court ruled Tuesday, but the estimated 18,000 same-sex couples who wed last year will still be recognized as married.

After chants of "Equality now!" before the ruling, hundreds of same-sex marriage advocates booed, hugged and wept while a relatively small number of opponents cheered on McAllister Street as readers recited from copies of the 136-page, 6-1 ruling, issued on the courthouse steps at 10 a.m.

Beneath the buzz of helicopters and amid a jungle of television trucks, same-sex marriage advocates vowed to bring the issue back before voters either next year or in 2012.

Later, a large group of protesters peacefully blocked the intersection of Van Ness Avenue and Grove Street outside City Hall for several hours. Police led them away, arresting them one by one, as hundreds more looked on, cheering. Police said 175 protesters were arrested.

"I was devastated about the decision and I feel this is the next step for me to take," said Amber Alves, 26, of Berkeley, as she awaited arrest. "I don't know what else to do. "... I just felt this is where I need to be."

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The court rejected same-sex marriage advocates' argument that Prop. 8 — approved by 52.3 percent of voters in November to add to the state constitution a section saying "Only marriage between a man and woman is valid or recognized in California" — was improperly placed on the ballot as an amendment with nothing more than petition signatures. They had argued it was actually a revision — a sweeping change in the constitution's core principles — which should have required a two-thirds vote of the Legislature or a constitutional convention in order to be placed before voters.

But the court found that Prop. 8 carved out a limited exception to constitutional rights by reserving the official term "marriage" for the union of opposite-sex couples, leaving undisturbed other aspects of same-sex couples' right to have an official, recognized and protected family relationship.

The court also rejected an argument that Prop. 8 violated the state constitution's separation of powers doctrine, letting voters make an end run around the judiciary's interpretation of constitutional rights. And the court also found no legal authority to support the State of California's argument that Prop. 8 is unconstitutional because it revokes inalienable rights without a compelling government interest.

Instead, the court agreed with Prop. 8's proponents that the measure should stand as an exercise of Californians' inalienable, sovereign right to amend their constitution.

It's not the court's job to decide if Prop. 8 was "wise or sound as a matter of policy," the majority found. And this case isn't like last year's, in which the court found state laws barring same-sex marriage violated the state constitution; rather, it's all about "the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself through the initiative process," the court wrote.

Supporters celebrated their victory in a battle they'd made a national priority.

"We're grateful this court did not overturn the civil rights of all Californians to amend our own constitution," said Brian Brown, executive director of the National Organization for Marriage, which through its California affiliate was the top fundraiser for Prop. 8. "The 7 million Californians who worked hard to protect marriage as the union of husband and wife are breathing easier today."

The city and county of San Francisco was among the parties suing to have Prop. 8 overturned.

"Today we're faced with a disappointing decision, but I think we all know it could've been worse," City Attorney Dennis Herrera said, noting the court declined to revoke the married status of the couples who had wed last year.

As protesters blocked Van Ness Avenue to decry the ruling, one counterprotester approached with a megaphone and began reciting a pro-Prop. 8 speech. He immediately was surrounded and shouted down by same-sex marriage advocates, who dogged him for a city block as police — apparently concerned for his safety — escorted him away.

Chauncey Killens, who said he's an associate pastor from Salinas but declined to name his church, said he'd come to "celebrate" the court's ruling. "We don't hate homosexuals, we disagree with them," he said. "I believe in telling the truth in love."

The majority opinion was authored by Chief Justice Ronald George and joined by associate justices Joyce Kennard, Marvin Baxter, Ming Chin and Carol Corrigan; Kennard filed a separate concurring opinion. Associate Justice Kathryn Werdegar filed a concurring opinion, agreeing with the majority's result but disagreeing in part with its analysis.

Only Associate Justice Carlos Moreno believed Prop. 8 should have been voided as an unlawful amendment.

"The majority's holding is not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal protection clause of the California Constitution," he wrote.

While Tuesday's ruling ends the legal battle over Prop. 8, it's just another milestone in California's larger, longer war over same-sex marriage. Equality California this month launched an advertising and grass-roots organizing campaign it hopes will sway public opinion toward acceptance of same-sex marriage, in advance of a new ballot measure in 2010 or 2012 that would overturn Prop. 8.